Legal Requirements for a Marriage-Based Visa or Green Card

Learn the specifics to apply for a marriage-based visa or green card for the immigrating spouse of a U.S. citizen.

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If you are married to a U.S. citizen or permanent resident, you can apply for U.S. lawful permanent residence, otherwise known as a marriage-based immigrant visa or green card. To be eligible under U.S. immigration law, you and your spouse must show that you are:

• legally married

• in a bona fide marriage (not a sham to get a green card)

• married to a U.S. citizen or lawful permanent resident, and

• that neither you nor your spouse are married to anyone else

We'll discuss all of these issues below.

You Must Be Legally Married

To qualify for a marriage-based visa or green card, you must be legally married. A legal marriage is one that is officially recognized by the government in the country or state where you were married. This usually means that an official record of your marriage has been made or can be obtained from some government office.

Learn more about the application process for a Fiance Visa for the immigrant spouse of a U.S. Citizen.

For this reason, domestic partnerships, in which a couple lives together but have not formalized their relationship, are not normally recognized for immigration purposes. However, if you have lived together in a place that recognizes common law marriages, you may be able to show that you met the requirements for your marriage to be legally recognized in that state or country. If you believe you may have entered into a common law marriage, you may want to consult an attorney.

You do not need to have been married in the U.S. for your marriage to be considered legal. It is perfectly acceptable if you marry in your home country or in some other destination of your choice. A variety of marriage procedures may also be recognized, from church weddings to customary tribal practices -- if recognized as valid in that country.

But note that both you and your spouse must have actually attended your wedding ceremony. So-called “proxy” marriages, where another person stands in for the bride or groom, are not recognized by the U.S. government unless the couple later consummates the marriage afterward, meaning they have sexual relations.

If you have not yet married, make sure you are eligible to do so. The state or federal government where you intend to marry may have legal restrictions on who can marry. In the United States, each of the 50 states establishes its own marriage rules. For example, in some states you must be 18 years of age to marry, while in others you can marry younger if you can have the consent of your parents. If you and your spouse are related by blood, you will also need to do some research. You will find that all states prohibit a person from marrying a sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. Some states have additional prohibitions, such as on marrying a first cousin.

See “Marriage Requirements, Procedures, and Ceremonies FAQ” for more information.

Finally, you will need to provide a document to show you were legally married. This will, most commonly, be a marriage certificate issued by a legitimate governmental agency. A warning is in order here—a piece of paper from a church or a ship’s captain will not, on its own, be enough to establish that you really are married.

Your Marriage Must Be “Bona Fide”

A bona fide marriage is one in which the two people intend, from the start, to establish a life together as husband and wife. Although this can mean different things to different people, one thing is clear: A marriage entered into for the sole purpose of getting the immigrant a green card is not bona fide. It’s called a “sham” or “fraudulent” marriage, and uncovering these relationships is a top USCIS priority.

Learn more detailed information about what is considered marriage fraud under U.S. law, click here.

When it comes to deciding whether a marriage is bona fide, USCIS is pretty strict. It will ask a lot of questions during the course of your application process. And it will demand extensive documentation to show that you are establishing a life together.

You Married a Citizen or Permanent Resident of the United States

There are only two types of people with U.S. residence rights who can obtain permanent residence or green cards for their spouses: U.S. citizens and U.S. lawful permanent residents (green card holders). People with temporary rights to live in the United States (such as with visas or work permits) cannot petition for their spouse to become a permanent resident.

Determining Whether Your Spouse Is a U.S. Citizen

Your spouse may have become a U.S. citizen in one of the following ways:

• being born in the United States or its territories

• becoming a citizen through application and testing (called naturalization), or

• acquiring or deriving citizenship through a family member. (Acquisition and derivation of citizenship are complex areas of the law. In general, people may acquire citizenship by being born abroad to one or two U.S. citizen parents; they may derive citizenship if they become lawful permanent residents first and then their parents are or become U.S. citizens.) See "U.S. Citizenship by Birth or Through Parents."

Unlike some other countries, the United States does not require that its citizens carry some sort of national identity card. People who are U.S. citizens may have different types of documents that prove their status, such as a birth certificate, a U.S. passport, or a naturalization certificate. Any of these can be used as proof of status for immigration purposes.

Sample U.S. Passport

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Determining Whether Your Spouse Is a U.S. Lawful Permanent Resident

A lawful permanent resident is someone with a legally obtained green card. This means that the person has a right to live in the United States permanently and may eventually become a U.S. citizen. The spouses of permanent residents are eligible for a green card.

The fact that your spouse has a green card now does not, however, guarantee that he or she will have it forever. Permanent residence can be lost, for example, if the person makes his or her home outside the United States or commits certain crimes or other acts that cause USCIS to begin removal proceedings and order the person deported. If your spouse were to lose permanent residence before you had finished the application process for a green card (which will likely take years), you would also lose your right to immigrate through the marriage.

cautionCAUTION

A green card is not the same thing as a work permit card. If your spouse carries a card with the title Employment Authorization Document, he or she is not a permanent resident. A green card looks like the image shown below. The right to work in the United States is temporary, usually given to people who are waiting for a decision on an immigration application (including green card applications). You cannot get a green card through someone who only has permission to work here.

Sample U.S. Green Card

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This Must Be Your and Your Spouse’s Only Marriage

Most people would prefer to forget about their past marriages. However, the U.S. government doesn’t make it that easy if you want to enter this country via a new marriage. Any previous marriages must have ended by legal means, such as death, divorce, or annulment. You will have to present the official documents to prove that the marriage ended, such as a death or divorce certificate. Otherwise, USCIS will wonder whether your first marriage is still your active and real one -- making your new marriage just a sham to get a green card.

by: , J.D.

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